Provisional Unlawful Presence Waivers – March 30, 2012 – I-601A waiver

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Trends, Legislative Reform, Processing of Applications and Petitions Leave a comment

Reminder: This proposed process is not in effect. To learn more, read this alert.

What USCIS Proposes

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Why We Propose It

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion.   But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process. USCIS believes that this proposed change will streamline the immigrant visa process for immediate relatives whose only ground of inadmissibility is unlawful presence. USCIS plans to adjudicate the provisional waiver application in the United States before the immediate relative departs for his or her immigrant visa interview, which will reduce the length of time immediate relatives must spend abroad for consular processing.

What the Proposed Process Would Do

Under the proposed process, immediate relatives of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

  • Is physically present in the United States;
  • Is at least 17 years of age;
  • Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
  • Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
  • Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  • Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

  • Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
  • Is subject to a final order of removal or reinstatement of a prior removal order;
  • May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
  • Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

  • Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
  • Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
  • The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

Next Steps

This new process will be implemented only after USCIS publishes a final rule in the Federal Register with an effective date. USCIS will consider all comments received as part of the proposed rulemaking process before publishing the final rule. The current waiver process remains in place and will continue to remain for those who may not be eligible for a provisional waiver.

DO NOT file an application or request a provisional waiver at this time. Any applications filed with USCIS based on this NPRM will be rejected and the application package returned to the applicant, including any fees, until the final rule is issued and the change becomes effective.

For additional information, please see our I-601A Questions and Answers document, linked at the upper-right side of this page.

This page can be found at: http://www.uscis.gov/provisionalwaiver

 


USCIS Office of Public Engagement: USCIS News Release –USCIS Proposes Process Change for Certain Waivers of Inadmissibility

Posted on by Ruby Powers in Immigration Law Leave a comment

USCIS Office of Public Engagement: USCIS News Release –USCIS Proposes Process Change for Certain Waivers of Inadmissibility

U.S. Citizenship and Immigration Services sent this bulletin at 03/30/2012 11:54 AM EDT

Dear Stakeholders,

  

U.S. Citizenship and Immigration Services (USCIS) today posted a Notice of Proposed Rulemaking  in the Federal Register outlining its proposal to create an alternative process for filing certain waivers of inadmissibility relating to unlawful presence.

 

The alternative process is not in effect and will is not be available to potential applicants until USCIS publishes a final rule with an effective date in the Federal Register. The public is welcome to submit comments to this proposed rule during a 60-day comment period on www.regulations.gov through June 1, 2012. For more information about the Notice of Proposed Rulemaking, please visit www.uscis.gov/provisionalwaiver.

 

 

Kind Regards,

 

Office of Public Engagement

U.S. Citizenship and Immigration Services

www.uscis.gov

 

 


3,100 undocumented immigrants held in largest-ever sweep

Posted on by Ruby Powers in Immigration Law Leave a comment

Article

Federal agents arrested more than 3,100 unauthorized immigrants last week in the country’s biggest-ever operation targeting criminal and fugitive immigrants for deportation, immigration officials said Monday.

 

Gillian Christensen, an Immigration and Customs Enforcement spokeswoman, told msnbc.com that the agency has focused on deporting known criminals since President Barack Obama took office. Now, 50 percent of deported immigrants have prior criminal records. In 2008, about 30 percent had criminal records.

 

There were 11.9 million unauthorized immigrants living in the U.S. in 2008, about 4 percent of the nation’s population, according to the Pew Research Center. Last year, the service deported 396,000 people.


Illegal crossings fall at US-Mexico border, but tensions remain high

Posted on by Ruby Powers in Immigration Law Leave a comment

Illegal crossings fall at US-Mexico border, but tensions remain high

By Julia Preston

updated 3/11/2012 12:11:18 AM 

PHOENIX — The impact of steep declines in the number of migrants illegally crossing the border with Mexico in recent years has rippled across Arizona and other border states, with federal and local law enforcement seeing big drops in crime related to illegal immigration.


USCIS Office of Public Engagement: Form I-601 Centralized Lockbox Filing Engagement

Posted on by Ruby Powers in Immigration Law Leave a comment
U.S. Citizenship and Immigration Services sent this bulletin at 03/02/2012 04:04 PM EST

Dear Stakeholder-

 

USCIS invites you to participate in a teleconference on March 9, 2012, at 3:00 p.m. EST to discuss the transition to centralized Lockbox filing of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by applicants outside the United States.

 

Currently, applicants for immigrant visas outside the United States must file a Form I-601 at a U.S. Embassy or consulate if a consular officer finds the individual inadmissible for a reason that may be waived. USCIS will phase-in a new requirement that Forms I-601 be filed and adjudicated in the U.S. This procedural change will also affect the filing and adjudication of Forms I-212 and I-290B associated with Form I-601 filings. USCIS is undertaking this change to more efficiently centralize operational processes and improve customer service with standardized filing and adjudication procedures.

 

During this session, USCIS will provide an overview of the Form I-601, Form I-212, and Form I-290B centralized lockbox filing and address questions and comments from participants.

 

This new process change is separate and distinct from the Notice of Intent that was published in the Federal Register on January 09, 2012, which outlines a proposed process for provisional unlawful presence waivers.

 

To Participate in the Session

Any interested parties may participate in this event by telephone. All participants must respond to this invitation. Please contact the Office of Public Engagement at public.engagement@dhs.gov by Thursday March 8, 2012referencing “Lockbox” in the subject line of your email. Please also include your full name and the organization you represent, if any, in the body of the email.

 

To Join the Call

On the day of the engagement please use the information below to join the session by phone. We recommend calling in at least 10 minutes prior to the start of the teleconference.

 

Call-in Number:             1-888-955-8940      

Overseas Toll Number:             1-630-395-0190      

Passcode: Lockbox

 

 

Kind Regards,

 

Office of Public Engagement

U.S. Citizenship and Immigration Services

www.uscis.gov


Deportations Plummet Under Obama’s New Immigration Policy

Posted on by Ruby Powers in Immigration Law Leave a comment

Article Found Here

President Obama’s efforts to tighten the leash on U.S. immigration enforcement have caused a sharp drop in the number of deportations, according to a report by the Syracuse University Transactional Records Access Clearinghouse. In the last three months of 2011, following the administration’s directive to curb deportations of illegal immigrants without criminal records or who came to the United States as a child or student (among other discretionary factors), deportations have plummeted.

The number of deportation proceedings instituted from October to December 2011 by Immigration and Customs Enforcement (ICE) plunged to 39,331, a 33-percent decline from the 58,639 filings documented the previous quarter. “Filings are typically lower at this time of year, but even adjusting for this seasonal drop-off and for late reporting,” the report noted, “there appear to have been over 10,000 fewer deportation filings than would have been expected last quarter.”

The chief priority of the administration’s June 17, 2011 directive was to restrict most deportations to those immigrants with criminal records. “It makes no sense to spend our enforcement resources on these low-priority cases when they could be used with more impact on others, including individuals who have been convicted of serious crimes,” Cecilia Muñoz, Director of Intergovernmental Affairs, wrote last August in a White House blog post. “This means more immigration enforcement pressure where it counts the most, and less where it doesn’t,” she added. “That’s the smartest way to follow the law while we stay focused on working with the Congress to fix it.”

However, according to Syracuse University researchers, there is “little evidence” that immigrants with criminal records are representing a higher ratio of overall deportations. In fact, during the purported timeframe, only 1,300, or 3.3 percent, were to be deported as alleged “aggravated felons.” Conversely, from July to September 2011, 3.8 percent were alleged “aggravated felons,” while six months ago the proportion was 4 percent. The researchers added:

An additional 4,193 were charged by ICE for other alleged criminal activity last quarter. When considered together with alleged “aggravated felons,” the proportion of filings in the last quarter seeking deportation on grounds of any alleged criminal activity was still less than one out of seven (14%). And even this small slice is continuing to decline. Two years ago, slightly more than one of six (17.3 percent) were alleged to have engaged in criminal activity as the grounds ICE cited for seeking removal.

“People have heard about these policy changes but largely haven’t seen any difference,” asserted Frank Sharry, executive director of immigration advocacy group America’s Voice.

Many critics have alleged that President Obama’s June 2011 directive was largely political, particularly considering deportations have reached record levels, averaging 400,000 per year, under the current administration. Astoundingly, that’s double the annual average during President Bush’s first term and 30 percent higher than the average when Bush left office. Due to those record numbers, along with Obama’s failure to implement so-called “comprehensive immigration reform,” there has been an ignition of criticism among the Hispanic community — a growing portion of the Democratic voter base.

“Latino immigrant voters know that the Alabama and Arizona laws didn’t come about from Democrats. They’re aware the Obama administration is fighting those laws. They know that Republicans blocked the DREAM Act. They know that Mitt Romney is talking about massive self-deportation,” Sharry said. “And they’re angry and disappointed that the Obama administration promised a legislative breakthrough, didn’t deliver it, but has delivered on record deportations.”

In response, the President has embarked on a political campaign to recover previous support from this pivotal sector of the American electorate.

“What we’ve been able to do is, administratively, we’ve said — let’s reemphasize our focus when it comes to enforcement on criminals and at the borders, and let’s not be focusing our attention on hard-working families who are just trying to make ends meet,” Obama said in an interview last week. “We’ve administratively proposed to reform the ‘three and 10″ program so that families aren’t separated when they’re applying to stay here in this country.”

In emphasizing his newly coined “five more years” campaign slogan, the President assured a Hispanic audience that he would use his second term to push immigration reform. “My presidency is not over,” Obama indicated, responding to a question about his failure to actualize an immigration bill. “I’ve got another five years coming up. We’re going to get this done.”

Moreover, the President rejected the notion that he broke a campaign promise, while passing the blame to Republicans who were unwilling to embrace any “sensible solutions” on the issue. “So far, we haven’t seen any of the Republican candidates even support immigration reform,” Obama charged, targeting his potential opponents in the upcoming presidential contest.

Political analysts and commentators have predicted that the Hispanic vote will be critical for Obama’s reelection bid, as the minority’s rising population has become an increasingly chief component of the American electorate. While many Hispanics who supported Obama in 2008 may refrain from voting Republican, their disappointment over Obama’s immigration efforts may deter them from even voting at all come November 6.

Considering the persistently stale economy — which has led to a sharp drop in Obama’s approval ratings — the President will rely heavily on minority voting groups, observers predict. As the Los Angeles Timesreported last October, the President has commenced an “all-out push to rebuild his popularity” with Hispanics, which has been “diminished by the weak economy and a lack of progress toward revamping the nation’s immigration system.”

“The excitement isn’t there like it was,” asserted Ana Canales, a volunteer and the county chairwoman for the Democratic Party of Bernalillo County in New Mexico, where the Obama campaign has accelerated efforts to recruit Hispanic voters. “There are a lot of people who are saying, ‘We’re not going to vote.’ We have a lot of work on our hands … to make sure those Latinos understand that he [Obama] is working for us.”


Chris LaRiche seduces immigrants with lies

Posted on by Ruby Powers in Immigration or Notario Fraud, Immigration Trends Leave a comment

Please be careful of ‘notarios’ because they are not lawyers and there is more to immigration than just ‘filling out forms.’  After a client has worked with a notario, it often difficult to fix the mistakes they have made.

I-601 Waiver Attorney, Ruby L. Powers

Link here – Full Article

Chris LaRiche seduces immigrants with lies

He offered empty promises but had secrets of his own

A A A Comments (6) By Gregory Pratt Wednesday, Jan 11 2012

 

Patrick Faricy

Patricia Cabrera came to the Fifth Street Towers in search of immigration papers. Cabrera had been listening to La Invasora radio when she heard an advertisement that seized her attention.

 

Hennepin County Sherriff

 

B FRESH Photography and Media

Silvia Sibri (below) blew the whistle on Chris LaRiche (top)

“If you don’t have legal status, our legal department can help you get a work permit,” the ad promised.

Cabrera, a squat 35-year-old woman with thin eyebrows and layers of makeup that can’t cover the years of wear on her face, has been living illegally in the United States since 2000, when she left Ecuador to find a job that would pay more than $5 a day.

She dialed the number from the ad and spoke with Chris LaRiche, a local businessman who said that he helped immigrants find work and attain legal status. LaRiche invited Cabrera to his office so they could review her situation.

The Fifth Street Towers impressed Cabrera. With their gilded escalators and gorgeous skyway, the downtown skyscrapers were a far cry from the dingy shops in the barrio.

Cabrera was less sure what to make of LaRiche, a short, baby-faced man in his late thirties who wore a dark dress shirt and yellow construction boots. He claimed to be “European” with an Argentinean grandparent.

Dozens of other immigrants huddled in LaRiche’s office that day. He would bring them into his quarters in small groups for consultations. When Cabrera walked into his office, LaRiche explained how he could help her family get papers.

“He said that he had a contact with immigration, ‘Mike,'” Cabrera remembers.

If the Cabreras wanted LaRiche’s help, they’d have to make an appointment next week and bring $500 each to initiate the process—a fee he said was a relative bargain.

“If you get an attorney, they will charge you $10,000,” LaRiche said.

Patricia returned the next week with her husband, Mario, a nephew, Geronimo, and plenty of questions. LaRiche pulled out a binder bursting with documents—”cases,” he said, that he’d successfully processed for illegal immigrants.

“I fixed these guys,” LaRiche said, indicating one stack of papers. Then, pointing to another stack, he added, “These guys I couldn’t help because they gave me fake papers.”

LaRiche courted the Cabreras with piles of documents, flashing government websites to give them a glimpse at the application process and teasing them with copies of what he said were work permits. He was a persistent suitor.

“I’m not lying to you,” LaRiche said, massaging their concerns. “If I were lying to you, I wouldn’t be here. The police would’ve come here for me a long time ago.”

In the end, the Cabreras trusted LaRiche, paying him $1,350 each, totaling $4,050, for the promise of work permits for the family.

“If you don’t get papers, I’ll return the money,” LaRiche guaranteed.

The Cabreras waited patiently, expecting to receive their documents in the mail on a Tuesday. They thought everything was going fine until that Tuesday came and went without the paperwork arriving. When another week passed without word from immigration, the Cabreras became nervous and called LaRiche, who assured them the permits were in the mail.

Worried, Patricia went to Pillsbury House, a south Minneapolis nonprofit. She was directed to a local immigration attorney, David Wilson, who had already heard of LaRiche.

When LaRiche heard that the Cabreras had spoken to an attorney about him, he was furious.

LaRiche warned: “I’ll send your husband to ICE and you’ll never get papers!”

LARICHE IS PART OF a burgeoning criminal enterprise: immigration scams. Catholic Charities of the Archdiocese of Washington filed a petition with the Federal Trade Commission in 2009 documenting a “widespread” and “increasing” trend of scams targeting immigrants.

“Until we filed the petition for Catholic Charities, there was no government agency that was trying to address this problem,” says David Zetoony, the attorney representing the organization. “Nobody was trying to quantify this as a problem or count the people who had been victimized and realized it. Most of these people were simply falling through the cracks.”

The Departments of Homeland Security, Justice, and the FTC launched a national campaign last June to crack down on immigration scams. Since the program began, the federal government has received 1,200 formal complaints of immigration scams, says Tom Carter, national coordinator of the government’s initiative. But the crime often goes underreported due to language barriers and immigrants’ fear of police.

“For the most part, we believe consumers that are victims of this are trying to do the right thing,” explains Carter. “They’re trying to file for some benefit they think they’re qualified for.”

Even with the feds paying attention to the issue, the problem is still “pervasive” across the country and in Minnesota, according to Michele Garnett McKenzie, the director of advocacy at the Advocates for Human Rights in Minneapolis.

“We have people coming in who have been victims of this sort of behavior on a fairly regular basis,” McKenzie said.

Local immigration attorneys say notarios—Spanish for a type of attorney that does not exist in the United States—can damage an immigrant’s case to remain in the country. Government lawyers take false, incomplete, or misleading information in immigration applications very seriously.


So Close and Yet So Far: How the Three- and Ten-Year Bars Keep Families Apart

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform, Processing of Applications and Petitions 1 Comment

From Immigration Policy Center

Most Americans take it for granted that marriage to a U.S. citizen and other family relationships entitle an immigrant to a green card, but there are barriers that often prevent or delay these family members from becoming lawful permanent residents, even if they are already in the United States.  Among these barriers are the “three- and ten-year bars,” provisions of the law which prohibit applicants from returning to the United States if they were previously in the U.S. illegally. Thousands of people who qualify for green cards based on their relationships to U.S. citizen or lawful permanent resident relatives leave the U.S. to obtain their green card are caught in a Catch-22—under current law they must leave the country to apply for their green card abroad, but as soon as they leave, they are immediately barred from re-entering the U.S. for three or ten years.

The Secretary of Homeland Security may waive the bar to admission if extreme hardship to a spouse or parent can be established.  But there are no waivers available for others, even if it would mean hardship for U.S. citizen children.  Unfortunately, current policies and interpretations of these provisions have made it difficult—and sometimes impossible—for many deserving applicants to obtain a waiver, especially if they initially entered the country illegally.  Under current DHS policy, applicants must apply for the waiver from abroad, sometimes waiting months or years in another country before they learn whether the waiver has been granted and whether they will be permitted to return to their loved ones in the United States.

In other words, immigrants who have a chance to legalize their status are not able to do so because of a combination of overly punitive immigration laws and the rigid interpretations of those laws currently followed by DHS and Department of State. Immigrants have to choose between leaving the country and taking the risk they might not be able to return, or remaining in the country illegally.  Where waivers are available, many of the immigrants most likely to be able to show extreme hardship are afraid to leave the country precisely because of that hardship.  For example, a wife with a disabled husband must choose between departing the United States to get right with the law or taking care of her U.S. citizen husband.

Many have argued that the process need not be so complicated or unforgiving and that changes in existing policy could allow for the consideration of waivers before the applicant departs the United States.  In order to understand how this issue affects the immigration debate, this IPC Fact Check provides background on the three- and ten-year bar issue.

What Are the Three- and Ten-Year Bars?

Sections 212(a)(9)(i) and 212 (a)(9)(ii) of the Immigration and Nationality Act (INA) impose re-entry bars on immigrants who are present in the U.S. illegally for a period of time, leave the U.S., and want to re-enter lawfully.  An immigrant who enters the United States without inspection (illegally), or who overstays a period of admission by more than 180 days, but less than one year, and who then departs the U. S. voluntarily, is barred from being re-admitted or re-entering the United States for three years.  If an immigrant is in the country illegally for more than one year, a ten year bar to admission applies.

Who Must Leave the U.S. for a Green Card and Why?

U.S. citizens and legal permanent residents may petition for green cards for certain family members.  Sometimes the immigrant family members are outside of the U.S. when the petition is filed and when the visa becomes available, and sometimes those family members are already residing within the U.S. while they wait for their petition to be adjudicated and their visa to become available.  Those in the U.S. may be here legally on a visa, or they may have come on a visa but that visa expired, or they may have entered the U.S. without proper documentation.

If the applicant for a family-based green card is the spouse, parent, or child under age 21 of a U.S. citizen (immediate relatives) AND if the applicant entered the U.S. with a valid visa (such as a visitor or student visa), that applicant may, in most cases, get their green cards in the U.S. through a process called “adjustment of status.”

However, all other people applying through the family-based system must go abroad and apply for their visa at a U.S. consulate in a procedure known as “consular processing.”    The adult children and siblings of U.S. citizens, as well as the spouses and children of legal permanent residents, must leave the country to get their green cards, whether they initially entered on a legal visa or not.

Are Waivers of the Three- and Ten-year Bars Available?

A waiver of the three- or ten-year bar is available only where extreme hardship to an applicant’s citizen or permanent resident spouse or parent can be established.  Hardship to the immigrant himself is not a factor, and hardship to the immigrant’s children is not a factor (even if the children are U.S. citizens).

The current system for processing and adjudicating these waiver requests requires immigrants to leave the U.S. and receive a formal determination of inadmissibility by a U.S. consular officer before a waiver application can even be submitted. Then the immigrants must apply for waivers of the three- or ten-year bar from outside the United States. In Ciudad Juarez, Mexico, one of the busiest consulates handling green card applications and waivers, there is currently a two to three month wait between submitting an application to the State Department and receiving a waiver interview with a USCIS representative.  Approximately half of those applications can be decided immediately while the rest are sent to the United States for further review; the waiting time for that review can vary significantly, but averages at least another twelve months.  Of course, not all waivers are granted, and those immigrants may not reunite with their family members for years. An appeal of a denied waiver can take up to 28 months or longer before the Administrative Appeals Offices adjudicates the appeal. This means longer periods of separation for family members.

What is wrong with the waiver process?

The current process is filled with inefficiencies and uncertainties.  It prevents a portion of the unauthorized population from getting legal status.  It breaks up families—often for a prolonged period of time.  It also exposes thousands of people to violence and danger because most waivers are filed in Ciudad Juarez (approximately 75% of the 22,000 I-601 waivers filed in 2009 were processed through Ciudad Juarez), a consulate located along the U.S.-Mexico border.  The city is wracked by drug violence, and the Department of State has issued travel advisories urging citizens to avoid Ciudad Juarez.

Other critical weaknesses in the system include:

  • Requiring adjudication of the I-601 waiver only AFTER departure from the United States.  The three- and ten-year bars to admissibility take effect only after an individual has left the United States.  But USCIS officers may not consider waiver applications while an individual is in the U.S.—even if available evidence clearly establishes that departure from the United States will, in fact, make a waiver application necessary.
  • Processing delays even in the best of circumstances.  Approximately 49% of waivers are adjudicated and granted within seven days at Ciudad Juarez.  The rest have to remain in Mexico for up to 12 months or until the waiver is approved.  Overseas processing is enormously complicated and bureaucratic.  An applicant must first meet with a consular officer from the Department of State (DOS), be told that a waiver is required, wait for the case to be referred, obtain and wait for the appointment with USCIS, wait for the adjudication, and then get a new appointment with DOS if the adjudication is granted.  Current wait times for the initial appointment with USCIS are 2 to 3 months, meaning that even under the best of circumstances, an applicant will have to be outside the U.S. for at least 3 months.
  • Uneven application of the extreme hardship standard.   Extreme hardship in the waiver context is determined by an analysis of the totality of the circumstances affecting the U.S. citizen or permanent resident relative who filed the petition.  Over the years, case law has led to a series of generally considered factors, including family ties, age, health, financial impact and country conditions.  Because the standard is subjective, it is open to a wide range of interpretations, making it difficult for applicants to know what materials or arguments should be submitted. This can extend the process significantly if you don’t “get it right” the first time the waiver is submitted.
  • Inefficiency and high costs.  Posting additional U.S. officers overseas to adjudicate cases and shuttling applications for waivers between agencies costs the government money and time.   The State Department currently charges USCIS $131 simply to receive and transfer each application for a waiver to USCIS.

What can be done?

  • Repeal three- and ten-year bars.  Congress can repeal the portions of the INA that created the bars in 1996, and this would eliminate the catch-22 inherent in obtaining a green card.
  • Allow applicants who entered as minors to adjust status within the U.S.  Immigrants who entered the U.S. as minors were often brought by their parents, due to no fault of their own.  They may never have visited the country of their birth, have no support networks there, and may not even speak the language.  These applicants should not be forced to return to a country they do not know and face the possibility of separation from their family members.
  • Adjudicate hardship waivers in the U.S.  It is possible to create a process that would minimize the length of time an immigrant would have to spend outside the U.S. and minimize the risk of being barred from re-entry.  Hardship waivers could be processed in the U.S.  Once the I-130 petition for a green card has been approved, the applicant could submit a hardship waiver application for pre-adjudication.  USCIS could review, request additional evidence, and issue a recommended approval that would be transmitted to DOS for final adjudication.  That way, when the immigrant leaves the U.S. to go to the consulate, he would already know whether the hardship waiver has been conditionally approved.
  • Expand guidance on the extreme hardship standard.   USCIS is already engaged in a review of the extreme hardship standard based on complaints that it is not consistently applied.  The agency should share the results of that review and solicit public feedback and comment and should then establish clear guidelines for making extreme hardship decisions.  Centralizing all waiver adjudications within the U.S. could have the added benefit of ensuring greater quality control and a more consistent standard, especially if waiver adjudications were consolidated into a special unit within USCIS.

Conclusion

Critics of the three- and ten-year bar find the penalties themselves unnecessarily harsh, but the existence of a waiver for spouses and children means that many families can be re-united.  The real issue involves the ease with which waivers can be processed.  While there may be disputes about how far the agency can go to address the impractical and harsh consequences of the three-and-ten-year bar, numerous legal experts believe that the agency has the authority to determine waiver requests while the applicant is still within the United States.  Taking this action promotes both family unity and government efficiency.

Revisiting current interpretations of laws like the three- and ten-year bars will not change the need for comprehensive immigration reform, but it will allow more people who are already eligible to obtain a green card the chance to do so without undermining existing laws.


USCIS Seeks to Unify Families Facing Separation through Revised Waiver Process

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

From Immigration Impact

Today, the administration took another important step toward fixing one of the most notorious problems with our broken immigration system—the 3 and 10 year bars. The U.S. Citizenship and Immigration Services (USCIS) announced today that it was filing a notice of intent to change a rule which would streamline the application process for many relatives of U.S. citizens currently eligible for permanent resident status, thereby minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States.

Under current rules, thousands of people who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering the U.S. for 3 or 10 years because of their unlawful presence in the United States. Many are eligible for a family unity waiver (which waives the bar to admission if extreme hardship to a spouse or parent can be established), but the way the law is currently implemented, the waiver can only be applied for from overseas That process can often take many months or even years, deterring otherwise eligible applicants from applying for legal status who instead remain unauthorized in the U.S. rather than risk separation from their families. (For more information on 3 and 10 year bar, see this fact sheet by the Immigration Policy Center.)

Under the proposed “in-country processing” rule change, spouses and children of U.S. citizens who apply for residence, but need a family unity waiver to re-enter the United States, will be allowed to apply for the waiver without leaving the U.S. The new rule seeks to help only spouses and children of U.S. citizens, not spouses and children of legal permanent residents, and does not alter or revise the eligibility standards for green cards or waivers. The proposed new rule would only affect persons whose sole need for a waiver is based on having lived in the U.S. without authorization (persons seeking a waiver on other humanitarian grounds must still leave the U.S.)

This “in-country processing” proposal means that USCIS could grant a provisional waiver here in the U.S, and many applicants would not face the same waiting period outside the country.  It is important to note that applicants would still be required to depart from the U.S. before receiving final approval and legal status.  But eligible immigrants will be encouraged to go through the process rather than remain unlawfully in the U.S.

Although the actual rule change will not go into effect for several months—a “notice of intent” to change the rules governing the adjudication of waivers for the 3 and 10 year bars was published in today’s Federal Register and will be followed by a call for comments and a comment period—the revision will make a huge difference in the lives of many U.S. families.

Applicants currently face long separations from their U.S. citizen family members as well as dangerous situations while they wait.  Many waivers are processed in Ciudad Juarez, Mexico, a city wracked with violence over the last several years.  This small step of allowing these family members to apply for and receive waivers inside the U.S. may save them from long, potentially dangerous separations from their families.

Some may argue that this rule change is an example of the president overstepping boundaries and bypassing Congress to reform the immigration system. These claims are wrong. While Congress writes the laws—including the 3 and 10 year bars—the executive branch decides how to execute the laws through rules and regulations which align with their priorities and current agency resources.  The waivers are currently processed overseas because of an administrative rule, and the current administration has every right to change that rule, just as all administrations before them.

The Obama administration is proposing a rule change that will partially ameliorate one of the most contradictory rules of immigration law, thereby encouraging legal immigration and helping to keep U.S. families together.


Proposed Rule Change Will Unify Families Subject to 3 and 10 Year Bars

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

From American Immigration Council

 
January 6, 2012 

Washington D.C. – Today, U.S. Citizenship and Immigration Services (USCIS) announced a proposal to streamline the application process for the spouses and children of U.S. citizens currently eligible for legal permanent resident status, minimizing the amount of time that applicants would have to be separated from their families.  Under current procedures, thousands of persons who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering for 3 or 10 years if they have been unlawfully present in the U.S. for more than 180 days.  Many are eligible for a family unity waiver, but under current rules (not law), the waiver can only be applied for from overseas.  Because that process can often take many months and even years, it is believed that many otherwise eligible applicants do not apply for legal permanent resident status, remaining unauthorized in the U.S. rather than risk lengthy separation from their families.

Published in the Federal Register today, the proposal—or, at this point, a “notice of intent to issue a rule”— recognizes this Catch-22 by revising the procedures for determining the family unity waivers for spouses and children of U.S. citizens. However, the rule change will not cover spouses and children of legal permanent residents. Under this “in-country processing” proposal, which must still go through the formal rule-making process, spouses and children of U.S. citizens who apply for legal permanent residence and need a family unity waiver to re-enter the U.S. will be allowed to apply for the waiver without first leaving.  This process does not alter or revise eligibility standards and only affects persons whose sole need for a waiver is based on having been in the U.S. without authorization.

This “in-country processing” proposal would permit USCIS to grant a provisional waiver, eliminating the often prolonged wait that many applicants currently face when they seek a waiver outside the U.S.  Although applicants would still be required to depart from the U.S. before receiving final approval on their application, pre-processing of the family unity waiver will encourage applicants to come forward and create a faster and safer means for processing applications.

The emphasis on safety is particularly important, given the large number of applications processed in Ciudad Juarez, Mexico, a city that has been wracked with violence in recent years.  Numerous cases of violence against persons waiting for their waivers have been reported, increasing the urgency of implementing the new rule quickly.  For other applicants, the streamlined process will minimize the time away from family members, reducing the possibility of economic and other hardships caused by long separations.

Our current immigration laws are riddled with inconsistent and conflicting provisions which have the absurd result of discouraging legal immigration.  Some of the most notorious are the bars to returning to the U.S. after a period of unlawful presence, even if a person has a legitimate relationship to a U.S. citizen.   Today’s announcement does not eliminate the bars, but it recognizes that there is no practical reason for forcing the spouses and children of U.S. citizens to wait outside the country for months or even years while their application for a waiver is pending.

According to Benjamin Johnson, Executive Director of the American Immigration Council, “By proposing new rules for processing waiver applications for spouses and children of U.S. citizens, USCIS has shown a commitment to addressing one of the most notorious implementation problems in our current immigration system.  Improving this system, within the framework of the law, is the legitimate role of any administration.  We commend USCIS for embarking on this rule change and its other attempts to bring efficiencies and fairness to the immigration system.”


Facebook

YouTube

LinkedId